What happened to traffic accidents, work-related injuries, lost time, and unpaid leave?

Can the "lost time" in personal injury compensation and the "salary during the period of unpaid leave" in industrial injury treatment have both? Combining with a case, this paper puts forward some views on this.

I. The parties to this case

1. Applicant for retrial (defendant in the first instance and appellee in the second instance): Hu Mouhua, female.

2. Respondent (plaintiff of first instance and appellant of second instance): a textile company in Changzhou.

Second, the plaintiff's claim

1. Revoke the arbitration award of Changzhou Zhonglou District Labor and Personnel Dispute Arbitration Commission Changzhou Laoren Zhonganzi No. (20 17);

2. The litigation costs in this case shall be borne by Hu Mouhua.

Third, the plaintiff's appeal request

Cancel the first-instance judgment and change the judgment to support the first-instance litigation request of a textile company in Changzhou according to law.

4. The defendant's request and reasons for applying to the High Court for retrial.

1. Revoke the civil judgment of Su 04 MinzhongNo. of Changzhou Intermediate People's Court of Jiangsu Province (20 18),

2. Maintain the civil judgment of Changzhou Zhonglou District People's Court (20 17) Su 0404 in the early Republic of China.

Reason:

1. The court of second instance did not investigate Hu Mouhua's claim for lost time from a third party in handling traffic accident cases, but directly determined that there was no factual basis. The traffic accident case prosecuted by Hu Mouhua was resolved through mediation, and it was not clear in the mediation that the compensation obtained by Hu Mouhua included lost time. The difference between Hu Mohua's claim and the compensation amount confirmed in the mediation book is enough to show that Hu Shenghua has not received compensation for lost time.

2. If the laborer suffers personal injury due to the tort of a third party, which constitutes a work-related injury, and the infringer has paid compensation, the laborer has the right to ask the employer to pay the work-related injury insurance benefits in addition to the medical expenses for the work-related injury. Article 13 of the Minutes of the 20 15 National Civil Trial Work Conference in the Supreme People's Court stipulates that the employer may deduct the workers' tort compensation, which does not include the wages paid during the shutdown. Therefore, the wages paid during the shutdown period do not belong to the category of medical expenses for work-related injuries. Even if the injured workers get the lost time paid by the third party, the employer should still pay the wages paid during the shutdown period. The application of law in the judgment of second instance is wrong.

Verb (abbreviation for verb) the result of a court decision

1, the court of first instance ruled:

1. A textile company in Changzhou shall pay Hu Mouhua the wages during the shutdown period 19053.3 yuan, one-time disability allowance of 35,408.8 yuan, one-time work-related injury medical subsidy of 30,000 yuan, one-time disability employment allowance of 15000 yuan, and appraisal fee of 200 yuan within ten days from the effective date of this judgment, totaling 99,662.5438 yuan+0 yuan.

2. Reject the request of a textile company in Changzhou not to pay Hu Mouhua's industrial injury insurance benefits.

2. The court of second instance:

1. Changzhou Zhonglou District People's Court (20 17) The first change in the civil judgment of Su 0404 Minchu No.1 is that a textile company in Changzhou will pay Hu Mouhua a one-time disability subsidy of 35,408.8 yuan, a one-time work-related injury medical subsidy of 30,000 yuan, and a one-time disability employment subsidy/kloc-0 on the day of receiving the notice.

2. Revoke the wages during the paid shutdown period in the first item of civil judgmentNo. Su 0404 (20 17) of the People's Court of Zhonglou District, Changzhou;

3. Reject the request of a textile company in Changzhou not to pay Hu Mouhua other industrial injury insurance benefits.

3. High Court:

1. Revoke the civil judgment of the Intermediate People's Court of Changzhou City, Jiangsu Province (20 18) Su 04 Minzhong No. ;

Second, maintain the civil judgment of Changzhou Zhonglou District People's Court (20 17) Su 0404 in the early Republic of China.

The first-instance case preservation fee 1020 yuan and the second-instance case acceptance fee 10 yuan are all borne by a textile company in Changzhou.

This is the final judgment.

Legal facts of intransitive verbs

1. Hu Mouhua joined a textile company in Changzhou on March 8, 20 16 as a car stop. The company did not pay social insurance for Hu Mouhua. During his tenure, Hu Mouhua's average salary in Kazuki Watanabe Musicians Association was 5058.4 yuan.

2, 2065438+July 3, 20061day 18, Hu Mouhua was injured in a traffic accident while driving an electric bicycle to work. The traffic police department determined that Hu Mouhua was not responsible for traffic accidents.

After Hu Mouhua was injured, he was immediately sent to the Second People's Hospital of Changzhou for treatment. On August 4th, 20 16, he was hospitalized, and he was discharged on August 23rd, 20 16. He was hospitalized for 23 days.

4. 20 17 65438+ 101Changzhou Human Resources and Social Security Bureau made a decision on work-related injury identification according to Hu Mouhua's application, believing that the accident injury suffered by Hu Mouhua belongs to the scope of work-related injury identification and was identified as a work-related injury.

On March 2017 18, Changzhou Labor Ability Appraisal Committee issued the Notice of Labor Ability Appraisal Conclusion to a textile company in Changzhou, and determined that Hu Mouhua's disability level was Grade 10.

6. On August 1 1, 2007, Hu Mouhua filed an arbitration application with the Arbitration Commission, demanding that a textile company in Changzhou pay various industrial injury insurance benefits 1 18850 yuan. After hearing the case, the Paris Arbitration Commission made an arbitration award (Chang Zhong Lao Ren Zhong Zi (20 17) No.469) on No.2015, ruling that:

A, a textile company in Changzhou pays all kinds of industrial injury insurance benefits for Hu Mouhua in one lump sum +0 yuan1

(salary during paid shutdown 19053.3 yuan, one-time disability subsidy of 35,408.8 yuan, one-time work-related injury medical subsidy of 30,000 yuan, one-time disability employment subsidy of 15000 yuan, appraisal fee of 200 yuan);

B Hu mouhua's other arbitration requests are not supported.

7. A textile company in Changzhou refused to accept the above ruling and appealed to the court.

8. A textile company in Changzhou filed an administrative lawsuit with the court because it refused to accept the work-related injury determination decision made by Changzhou Human Resources and Social Security Bureau. The People's Court of Xinbei District of Changzhou City and the Intermediate People's Court of Changzhou City of Jiangsu Province both rejected the lawsuit of a textile company in Changzhou.

Seven. The focus of controversy in this case: Should a textile company in Changzhou pay Hu Mouhua's salary during the shutdown?

VIII. Evaluation

I. Provisions on Ten-level Disability Treatment:

According to the latest Industrial Injury Insurance Regulations,

Thirty-seventh workers who are disabled due to work are identified as seven to ten disabled, and enjoy the following benefits:

(1) The industrial injury insurance fund will pay a one-time disability subsidy according to the disability level. The criteria are: level 7 disability 13 months, level 8 disability 1 1 month, level 9 disability for 9 months and level 10 disability for 7 months;

(two) the expiration of the labor employment contract, or the employee himself proposes to terminate the labor employment contract, the industrial injury insurance fund pays a one-time medical subsidy for work-related injuries, and the employer pays a one-time disability employment subsidy. Specific standards for one-time medical subsidies for work-related injuries and one-time disability employment subsidies shall be formulated by the people's governments of provinces, autonomous regions and municipalities directly under the Central Government.

B, "Jiangsu Province Industrial Injury Insurance Implementation Measures" has provisions.

Article 27 If an employee is identified as being disabled at level 5 to 10 due to work, and the labor relationship with the employer is dissolved or terminated in accordance with the provisions of the Regulations, the industrial injury insurance fund will pay a one-time medical subsidy for work-related injuries, and the employer will pay a one-time disability employment subsidy. The benchmark standards of one-time medical subsidy for work-related injuries are: 200,000 yuan for level 5, 6.5438+0.6 million yuan for level 6, 6.5438+0.2 million yuan for level 7, 80,000 yuan for level 8, 50,000 yuan for level 9 and 30,000 yuan for level 10. The benchmark standards of one-time employment subsidy for the disabled are: 95,000 yuan for level 5, 85,000 yuan for level 6, 45,000 yuan for level 7, 35,000 yuan for level 8, 25,000 yuan for level 9 and 6,543.8+0.5 million yuan for level 10.

C. Compensation items for personal injury accidents caused by infringement:

1. Medical expenses: medical expenses+medical expenses+hospitalization expenses+other expenses (refer to the expense list and hospital invoice);

2, hospital food subsidies:

3. Nutrition fee: appropriately determined according to the disability and referring to the opinions of medical institutions.

4. Lost time: victim's fixed income × lost time or employee's annual income ÷365× lost time days or employee's annual income ÷ 12 months ÷ 2 1.75 days × lost time days (calculated to the day before disability).

5. Nursing expenses: original daily income of the chaperone × nursing days or remuneration standard of nurses at the same level × accompanying time or annual income of employees ÷ 1.75 days× nursing days or 100 yuan/day. Note: In principle, 1 person, the medical institution or appraisal institution has made it clear.

6. Accommodation fee: it will be compensated when it is treated in other places, and it is generally not treated locally;

7. Transportation expenses: reasonable transportation expenses actually incurred (with relevant bills attached);

8. Disability compensation:

① The per capita disposable income of urban residents or the per capita net income of rural residents in the last year where the appeal court is located ×20 years× disability compensation index (under 59 years old, including 59 years old);

② The per capita disposable income of urban residents or the per capita net income of rural residents in the last year where the court of appeal is located ×(20- (the actual age of the victim is -60)) years× disability compensation index (60 to 75 years old, inclusive);

③ The per capita disposable income of urban residents or the per capita net income of rural residents in the last year where the appeal court is located ×5 years× disability compensation index (over 75 years old, including 75 years old).

9. Expenses for assistive devices for the disabled: reasonable expenses for common applicable devices. Determine the corresponding reasonable expenses with special reference to the opinions of the auxiliary equipment configuration organization;

10, living expenses of dependents (if the victim dies, it is not necessary to multiply the disability compensation index).

① The per capita consumption expenditure of urban residents or the per capita annual consumption expenditure of rural residents in the last year where the appeal court is located ×( 18- the actual age of the dependents) years/the number of people with maintenance obligations× disability compensation index; Remarks: If the dependent is under 18 years old, it does not include 18 years old.

② Per capita consumption expenditure of urban residents or per capita annual consumption expenditure of rural residents in the last year where the appeal court is located ×20 years/number of people with maintenance obligations× disability compensation index; Remarks: The age of the dependent is between 18-60 years old, with no ability to work and no other source of income.

③ The per capita consumption expenditure of urban residents or the per capita annual consumption expenditure of rural residents in the last year where the court of appeal is located ×(20- (the actual age of the dependents -60)) years/the number of people with maintenance obligations× disability compensation index; Remarks: between 60 and 75 years old, including 60 years old and excluding 75 years old.

(4) The per capita consumption expenditure of urban residents or the per capita annual consumption expenditure of rural residents in the last year where the appeal court is located ×5 years/number of people with maintenance obligations× disability compensation index; Note: over 75 years old, including 75 years old.

1 1. Funeral expenses: the average monthly salary of employees in the place where the court of appeal is located in the previous year (yuan/month) ×6 months;

12, death compensation

① The per capita disposable income of urban residents or the per capita net income of rural residents in the last year where the Court of Appeal is located ×20 years; Remarks: Under 59 years old, including 59 years old.

② The per capita disposable income of urban residents or the per capita net income of rural residents in the last year where the court of appeal is located was ×(20- (the actual age of the dependents is -60)) years; Remarks: between 60 and 75 years old, including 60 years old and excluding 75 years old.

③ The per capita disposable income of urban residents or the per capita net income of rural residents in the last year where the Court of Appeal is located ×5 years; Remarks: over 75 years old, including 75 years old.

13, spiritual consolation money: 30,000 yuan × disability compensation index; Remarks: The disability compensation index is determined according to the disability grade, and the death may be increased as appropriate.

14. Appraisal fee: subject to the bill, generally including the inspection fee and appraisal fee at the time of appraisal;

15, second operation fee: generally, the appraisal opinion of the judicial opinion on disability appraisal shall prevail, and the main item shall be selected; Follow-up treatment fee: only one item can be selected for the second operation fee.

16. direct property loss fee: the direct loss of damaged property shall be subject to the bill or appraisal report.

17. Loss due to vehicle stoppage: The actual loss occurred during the period of vehicle stoppage, and the victim used the damaged vehicle for cargo transportation or passenger transportation.

D. Provisions on "Wage during paid shutdown"

The latest industrial injury insurance regulations

Article 33 If an employee suffers from an accident or occupational disease at work and needs to be suspended from work to receive work-related injury medical treatment, the original salary and welfare benefits will remain unchanged during the paid suspension, and the unit where he works will pay him monthly.

The paid shutdown period generally does not exceed 12 months. If the injury is serious or the situation is special, it may be appropriately extended upon confirmation by the Municipal Labor Ability Appraisal Committee with districts, but the extension time shall not exceed 12 months. After assessing the disability level, the injured workers shall stop the original treatment and enjoy the disability treatment in accordance with the relevant provisions of this chapter. Workers with work-related injuries who still need treatment after the expiration of paid shutdown shall continue to enjoy medical treatment for work-related injuries. Workers with work-related injuries who can't take care of themselves need care during the paid shutdown period, and their units are responsible for it.

E, lost time: lost time refers to the income that the compensation obligor should pay to the compensation obligee, which is actually reduced during the period from injury to full recovery of the victim (lost time) because the victim can't engage in normal work.

F, combined with the specific analysis of this case

1. In this case, the laborer had a traffic accident on his way to and from work. Being recognized as an irresponsible self. The perpetrators of traffic accidents should bear full responsibility. The accident was confirmed as a work-related injury. The employer or the industrial injury insurance fund shall be liable for compensation. Victims can get personal injury compensation and work-related injury compensation (excluding work-related injury medical expenses).

2. Medical expenses for work-related injuries: medical expenses, nursing expenses, nutrition expenses, transportation and accommodation expenses, hospital food subsidies, disability AIDS and other actual expenses incurred by workers with work-related injuries. The salary during the period of suspension without pay does not belong to the category of medical expenses for work-related injuries.

3. Article 13 of "Minutes of 2015 National Conference on Civil Trial Work" stipulates that "wages during the period of shutdown with pay do not belong to the category of medical expenses for work-related injuries":

If the employer to which the laborer belongs does not participate in work-related injury insurance, and the personal injury of the laborer is caused by the infringement of a third person, which also constitutes a work-related injury, and the laborer has obtained the tort compensation, the employer shall deduct the actual expenses paid by the third person from the responsibility of work-related injury insurance, such as medical expenses, nursing expenses, nutrition expenses, transportation expenses, hospital food subsidies, assistive devices for the disabled, funeral expenses, etc. If the employer pays compensation for work-related injury insurance in advance, it may recover compensation from the third party within the scope of the compensation liability that the third party should bear.

4. Even if the injured employee receives the lost time paid by a third party, the employer shall still pay the wages during the paid period of shutdown.

5. Hu Mouhua claims that the salary during the paid shutdown period does not belong to the category of medical expenses, but he can still claim to the employer that it is an applicable legal error to change the second-instance judgment that a textile company in Changzhou does not pay the salary during the paid shutdown period. Hu Mouhua's retrial request was established.

6. It is the legal obligation of the employer to handle work-related injury insurance for employees. If the employer fails to apply for work-related injury insurance for employees, even if the work-related injury is caused by a third person, the employer cannot transfer the compensation liability for work-related injury insurance benefits to others. However, if a third party's tort causes personal injury to the employee and constitutes a work-related injury, and the infringer has already paid compensation, the employee has the right to ask the employer to pay work-related injury insurance benefits other than medical expenses. If the employer pays the treatment of work-related injury insurance in advance, it may recover the medical expenses from the third party within the scope of the compensation liability that the third party should bear.

Correctly understand the law and safeguard the legitimate rights and interests.